White v. Int'l Text-Book Co.

• Decision Date: 11 January 1911
• Citation: 129 N.W. 338,150 Iowa 27
• Parties: WHITE v. INTERNATIONAL TEXT-BOOK CO.
• Court: Iowa Supreme Court

150 Iowa 27

129 N.W. 338

WHITE

v.INTERNATIONAL TEXT-BOOK CO.

Supreme Court of Iowa.

Jan. 11, 1911.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Action for malicious prosecution was dismissed as to defendant Griswold during the trial. The verdict was in favor of defendant Crane and against the International Text-Book Company, and judgment was entered accordingly. The company and plaintiff appeal; that of the company being first perfected. Reversed.David C. Harrington and E. L. Anderson, for appellant.

J. N. Hughes and C. R. Sutherland, for appellee.

LADD, J.

The facts are recited in the opinion rendered on the former appeal (121 N. W. 1104). The rulings therein, as the evidence at the last trial did not differ materially from that adduced at the first, must be regarded as the law of the case. Several new points were raised on the last trial and these may be considered.

1. The company's superintendent at Cedar Rapids was O. O. Crane, who caused plaintiff's arrest. After the latter had been in jail several hours, Hench called on Crane and proposed to furnish the money necessary, if Crane would get plaintiff out of jail. Thereupon, at Crane's instance, he was brought to the latter's office and the $89.40 collected for the company, less commissions and compensation for services owing plaintiff, together with $10.40 court costs was paid Crane and plaintiff was released from custody and the prosecution subsequently dismissed. The plaintiff paid the amount required, save $26, which was furnished by Hench. There was still due him from the company a refund of money deposited as security of a display outfit and on bond premium. Payment was made with the understanding that plaintiff was to be released from custody and the criminal prosecution dismissed, and it is contended by the company that, owing to this arrangement, the prosecution was not so terminated as to entitle plaintiff to maintain this action. Authorities are cited, said to hold that when the discontinuance or dismissal of criminal proceedings has been brought about by the procurement of the party prosecuted, or by another with his consent, without defense, the termination is not such as is exacted before an action for malicious prosecution can be maintained. Craig v. Ginn, 3 Pennewill (Del.) 117, 48 Atl. 192, 53 L. R. A. 715, 94 Am. St. Rep. 77;Welch v. Cheek, 125 N. C. 353, 34 S. E. 531;Langford v. Railway, 144 Mass. 431, 11 N. E. 697;McCormick v. Sisson, 7 Cow. (N. Y.) 715; Brown v. Randall, 36 Conn. 56, 4 Am. Rep. 35; Emery v. Ginnau, 24 Ill. App. 65. But defendants admitted in their answer that the prosecution was dismissed. They moved that a verdict be directed in their favor, but not on this ground. Numerous instructions were requested but none touching this point, nor was it touched in the motion for new trial. Evidently the question was not presented or ruled by the trial court, and for this reason cannot be raised in this court for the first time. For this reason we do not rule out the question.

2. The plaintiff had been employed by the company for 18 months prior to the time Crane was authorized by it to prosecute him for embezzlement, and the company contends that testimony concerning anything said by its division superintendent, Griswold, by whom he was discharged or its superintendent, Crane, to whom he was required by his contract to pay all moneys collected by the company, prior to such authorization, was not admissible for that the agent's authority had not been shown. The answer admitted that these were agents of the company, and as Griswold was acting within previously conferred authority in discharging him, and Crane, in his efforts to induce him to return the money collected, the evidence of what was said bore directly on the issue as to whether plaintiff had appropriated the money to his own use or, without intention so to do, was insisting upon the company allowing or paying to him what it had become obligated to repay upon his discharge as promptly as it was claiming payment from him. If the authority of these agents as admitted by the answer was not broad enough prior to the introduction of this evidence, the defendants subsequently supplied the omission and the error if any, having been cured, was without prejudice.

4. The day after plaintiff's discharge, he retained an attorney, who telephoned to the justice by whom the warrant was issued and was told that dismissal of the...